Monday :: Dec 21, 2009

Jack Balkin: "A Time Of Crisis In American Politics"


by Turkana

In the past few decades, in different academic fields, a recurring theory has developed, on the nature of paradigmatic change. In evolutionary biology, it was the Stephen Jay Gould and Niles Eldridge theory of punctuated equilibrium. In the philosophy of history, it was Michel Foucault's historical discontinuity. In constitutional law, it was Bruce Ackerman's constitutional moments.

In broad terms, these theories share the concept that profound change does not occur by a process of slow incrementalism. It occurs in sudden paradigmatic leaps, after long plateaus of relative stasis. As recently explained by Yale Law Professor Jack Balkin:

One of these components is the idea that politicians, in desperate political circumstances, engage in what Ackerman calls "unconventional adaptation" to political impasse, leading to a "switch in time" by a recalcitrant institution that is threatened by the unconventional adaptation. If the unconventional adaptation succeeds, if the recalcitrant institution backs down, and if the public supports reform in subsequent elections, a new set of constitutional customs and understandings is created.

Balkin believes we are now at such a moment. He has been hoping President Obama would use the health care impasse to force such a switch, either by encouraging the Democratic Senate leadership to go nuclear on the filibuster, or by forcing a better bill through reconciliation.

Previously, the President and the Senate Leadership took reconciliation off the table, in part because President Obama wanted to try a new post-partisan form of politics. This politics has failed miserably. The Republican Party in Congress has a unified and single minded focus on his political destruction, to make health care, in the words of the Senator from South Carolina, his "Waterloo." The Republican Party's hope is that weakening Obama will increase their gains in the 2010 election.

And Balkin believes the Republicans are right, in their political calculation.

If Obama does not make this threat credibly, opponents of reform will succeed and the Senate-- and particularly the power of the Republican minority and Blue Dog Democrats in the Senate-- will become more powerful than ever.

It is, in other words, a match to the death between Obama's promise of a new politics and the existing forms of politics.

And in an update, today, Balkin responds to this post by Paul Krugman:

After all, Democrats won big last year, running on a platform that put health reform front and center. In any other advanced democracy this would have given them the mandate and the ability to make major changes. But the need for 60 votes to cut off Senate debate and end a filibuster — a requirement that appears nowhere in the Constitution, but is simply a self-imposed rule — turned what should have been a straightforward piece of legislating into a nail-biter. And it gave a handful of wavering senators extraordinary power to shape the bill.

Now consider what lies ahead. We need fundamental financial reform. We need to deal with climate change. We need to deal with our long-run budget deficit. What are the chances that we can do all that — or, I’m tempted to say, any of it — if doing anything requires 60 votes in a deeply polarized Senate?

Krugman notes that the current use of the filibuster is a recent historical development:

The political scientist Barbara Sinclair has done the math. In the 1960s, she finds, “extended-debate-related problems” — threatened or actual filibusters — affected only 8 percent of major legislation. By the 1980s, that had risen to 27 percent. But after Democrats retook control of Congress in 2006 and Republicans found themselves in the minority, it soared to 70 percent.

As the saying goes, we have met the enemy and he is us. Last night's party-line vote, after a summer of bending over backwards to appease ostensible Republican moderates, should be the final proof anyone needs that Republicans will neither negotiate in good faith nor compromise. Their sole goal is to destroy the Obama presidency. Which brings us back to today's post, by Balkin:

The American legislative system is broken. It worked passably well when the two parties were not ideologically polarized, when there were many cross party friendships and ways to deal across the aisle, and when filibusters were reserved for comparatively few situations and not threatened routinely. But those days are gone. They are not coming back anytime soon. The Republican Party understands this. The Democratic Party needs to.

I've previously called it unilateral knee-capping. It also could be called unidirectional bipartisanship. And both Krugman and Balkin think it needs to end. Balkin thinks the Senate rules have to be reformed, and that the president needs to figure that out.

This is a time of crisis in American politics: not a crisis created by danger or emergency but by the gradual decay of government institutions. Americans need a Senate that works. The President and the Democrats have an obligation to resolve this crisis, not only for themselves, but for the benefit of the later administrations of both parties.

A government that can do nothing, and is perpetually held hostage to selfish men and women, will lose legitimacy and the confidence of the public; it will weaken and decay, and, sooner or later, find itself unable to respond to crises when they occur. Then the public will demand emergency measures from the executive, acting alone without the consent of Congress, further weakening republican government. A desperate or unscrupulous president will be only too happy to comply. Either we make Congress capable and responsive, or we will eventually lose the republic.

Jack Balkin is the Knight Professor of Constitutional Law and the First Amendment at Yale Law School. We ignore him at our peril.

Turkana :: 2:35 PM :: Comments (6) :: Digg It!